Must a magistrate resign immediately to run for sheriff, and may the candidacy be announced outside the courthouse?

Plain-English summary

A magistrate considering a run for sheriff asked whether the magistrate could remain in office until a replacement was appointed and whether resignation and candidacy could be announced on the street outside the building housing magistrate court.

The Commission applied former Canon 5A(2) and West Virginia Constitution art. VIII, § 7. It required immediate resignation upon announcement of the nonjudicial candidacy; the magistrate could not wait for a replacement. It saw no Code bar to the public sidewalk or street announcement, especially if resignation came first.

In practice

Resignation is required immediately upon the nonjudicial candidacy announcement; the opinion’s location answer concerns a public street or sidewalk outside the court building.

Common questions

Q: Can the magistrate wait until a replacement is appointed?

A: No. The Commission requires immediate resignation upon candidacy announcement.

Q: May the announcement occur on a public sidewalk outside court?

A: Yes, particularly after resignation.

Q: What is the constitutional source?

A: West Virginia Constitution art. VIII, § 7, as cited in the opinion.

Background and rules framework

Former Canon 5A(2) requires a judge to resign upon candidacy for nonjudicial office. The opinion treats that rule as consistent with West Virginia Constitution art. VIII, § 7.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 5A(2).

Constitution cited: W. Va. Const. art. VIII, § 7.

Other opinions cited: JIC Opinions 12/14/2009, 07/03/2007, and 6/14/2007.

See also

• WV JIC Advisory Opinion 2012-06
• WV JIC Advisory Opinion 2012-02

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2012-03, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304

(304) 558-0169 © FAX (804) 558-0831
January 27, 2012

Re: JIC Advisory Opinion 2012-03.
Dear Magistrate

Your January 18, 2012 request for an advisory opinion to Counsel was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: You are presently a Magistrate in County. You are considering a run for the non-judicial office of Sheriff. You want to know if you have to immediately resign as Magistrate upon announcing your candidacy for Sheriff or if you can continue working until a new magistrate is appointed by the circuit judge. You also want to know if it is a violation to announce your resignation on the public street/sidewalk next to the building which houses Magistrate Court and then announce your candidacy for Sheriff. According to you, the building which houses the Magistrate Court of ~ County is a privately owned building. The Court is on the third floor, the second floor is empty, and the first floor is occupied by a bank. There are no signs anywhere on the outside of the building that state Magistrate Court is an occupant.

Canon 5A(2} of the Code of Judicial Conduct provides in pertinent part that “a judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or general election... .“ This provision is consistent with Article Vill, Section 7 of the West Virginia Constitution which provides that “[nJo justice, judge or magistrate shall hold any other office, or accept any appointment or public trust, under this or any other government; nor shall he become a candidate for any elective public office or nomination thereto, except a judicial office; and the violation of any of these provisions shall vacate his judicial office.” See also JIC Advisory Opinion 12/14/2009 (Mental Hygiene Commissioner, as a judicial officer, may not, at the same time, hold the position of part-time assistant prosecutor); JIC Advisory Opinion 07/03/2007 (Mental Hygiene Commissioner cannot concurrently serve as a Municipal Judge);

JIC Advisory Opinion 2012-03
January 27, 2012
Page 2 :

and JIC Advisory Opinion 6/14/2007 (Mental Hygiene Commissioner cannot concurrently sit as an elected member of city council).

Based upon the foregoing, you must resign as Magistrate immediately upon announcing your candidacy for Sheriff. You cannot remain in the former position pending appointment of a new magistrate. The Commission is of the opinion that there is nothing in the Code that precludes you from making your announcement on a public sidewalk/street outside Magistrate Court, particularly if you have resigned your judicial position before announcing your candidacy for Sheriff.

It is hoped that this opinion fully addresses the issues which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Sincerely, ;

Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/tat